BEATON & BEATON (No.2)

[2020] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEATON & BEATON (No.2) [2020] FCCA 2485

Catchwords:
FAMILY LAW– Application for a stay– where interim relocation orders were made – where a Notice of Appeal has been filed against those orders – where the application for a stay is dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Morgan & Miles [2007] FamCA 1230

Applicant: MR BEATON

Respondent: MS BEATON

File Number: SYC 7906 of 2019

Judgment of: Judge Boyle

Hearing date: 24 August 2020

Date of Last Submission: 24 August 2020

Delivered at: Sydney

Delivered on: 24 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Sansom SC

Solicitors for the Applicant: Abrams Turner Whelan Family Lawyers

Counsel for the Respondent: Mr Lethbridge SC

Solicitors for the Respondent: De Saxe O’Neill Family Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Application in a Case filed by the Father on 17 August 2020 is dismissed.

2. The Mother’s costs of today are reserved.

3. The matter remains listed for mention on 19 November 2020 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Beaton & Beaton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7906 of 2019

MR BEATON

Applicant

And

MS BEATON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application by the father for a stay of orders made on 14 July 2020.  The orders permitted the mother to relocate the parties’ two children, X, aged 5, and Y, 18 months, to Victoria to live with her parents from 17 October 2020, or when the border between NSW and Victoria reopens, whichever is the later. The orders provide for time arrangements between the children and their father, in the circumstances where the parties are in Sydney, and when the mother and children relocate to Victoria.

2. I have been taken by senior counsel for both parties to the principles to be applied to a stay.  The onus rests on the applicant to establish proper grounds for a stay.  The respondent is entitled to the benefit of the judgment, having obtained it.  The respondent is also entitled to assume that the judgment is correct. 

3. I need to be satisfied of the bona fides of the applicant in the application for a stay.  I do not have any issue with respect to the applicant’s bona fides.  He has filed the application for an appeal.  It is unclear why he has not yet applied for expedition of the appeal. He indicated that he will do so within seven days.  He is complying with the requirements of the appeal process, so that the matter will be ready when the Full Court is available to hear it.

4. The stay may be granted on terms. This is not the kind of matter where that is an option.  Other than the guarantee that the appellant will apply for expedition, there are no terms which weigh the balance of convenience in the competing rights of the parties, particularly when there is no indication of when an appeal may be able to be heard or whether it will be expedited. 

5. The next principle is weighing the risk that an appeal may be rendered nugatory if a stay is not granted.  The mother has, since the older child X was born, been provided with a great deal of support from her parents.  That has occurred both by them staying with the parties in Sydney, and by the mother and children spending significant periods of time with them in Victoria.  The father has attended with the mother at times. I understand from the evidence provided at the interim hearing, the mother and children have been there absent the father on a number of occasions.  That is not controversial.

6. The parties own the former matrimonial home, where the mother and children are currently residing in Sydney.  The father has arranged for rental accommodation for himself nearby in the Region B of Sydney.  Were the mother to relocate with the children to Melbourne on an interim basis, she would be staying at the home of her parents with no costs. The former matrimonial home would be available for her and the children to return, were the Full Court to reverse the interim decision. The parties are in a financial position that would, if it were required, permit the father to move back into the former matrimonial home when the mother vacated it.  If a return was ordered she and the children could live in rented accommodation, as the father is doing at present.

7. The parties are in a more comfortable situation than many parties before the Court find themselves, because there is no requirement for accommodation in Melbourne, and there is a property available in Sydney.  That removes a lot of the difficulties that arise in relocation matters where, once a party has moved, the costs of finding accommodation to return Sydney makes a return extremely difficult. 

8. In terms of disruption for these children in moving to Victoria and then being required to return, this is a situation where these children have frequently travelled between the maternal grandparents’ home and Sydney.  X starts school next year.  If he starts school in Victoria and he is required to return, there may be some disruption for him.  It is not an unmanageable level of disruption weighed against other benefits in moving. 

9. An assessment of the strength of the proposed appeal refers to the Aldridge & Keaton standard, that there is an arguable case.  Issue is taken with the meaning of the order permitting the mother to relocate with the children.  The order permits that to happen from 17 October 2020, or when the New South Wales/Victoria border reopens, whichever is the later.  The interim judgment deals in some detail with the difficulties of travel during the border closure.  It seems to me that the order is clear, particularly when one reads the judgment, as to what it means.  Senior Counsel for the mother referred to the orders as a package. That is, the mother is unable to move unless the time orders are able to operate.  That argument again suggests this is perhaps not a strong appeal point.

10. The argument with respect to Morgan & Miles taken by senior counsel for the father referred to the difficult issues involved in relocation, making it highly desirable that, except in cases of emergency, arrangements in a child’s best interests should not be determined in an abridged hearing.  There are cases where children’s needs for stability may be extremely relevant on an interim basis.  This is so where schooling is interrupted, or financial difficulties prevent a move being reversed.  That is not an issue in this matter. 

11. In this matter, issues of stability for these children arise from the mother’s vulnerabilities, and her need to have support.  In my view that is a more significant issue for these children than the potential of their spending some months, pending an appeal, in Victoria only to be returned following that determination.  I also note that it was the mother’s position during the interim hearing that she would be able to return if, on a final basis, the Court orders her to do so. Her position is no different with respect to the appeal. 

12. These children are moving to a familiar environment, supported by their maternal grandparents, where they have spent a considerable amount of time.  A delay in the move from the delivery of judgment is part of the orders, because it was weighed against the need for there to be solid time built up with the father to provide for these children the stability of that relationship.  This is so that relationship can be sustained through the move to Melbourne, and reduce the delay in them being ready for overnight times to commence.  I say that particularly with respect to Y, who is much younger than X. 

13. Much of the matters put before me at the interim hearing were uncontested.  That is, the amount of time the mother and children have spent with the maternal grandparents in Melbourne; that the mother has had considerable support from her parents since X’s birth; and that she has been desirous of returning to Melbourne since X’s birth.

14. The mother has been adversely affected by the separation in terms of its emotional impact. She has benefitted from assistance from a psychologist, and is still requiring assistance. It is uncontested that she is the primary carer for these boys and, on an interim basis, will continue to be so. The benefit to these children of having a primary carer who is coping well is clear. 

15. With respect to limiting the frequency of changing arrangements for the children, they would continue to be in the primary care of their mother.  They have previously lived frequently with their maternal grandparents and it is a familiar arrangement for them. If required to return to Sydney, that is something that is able to be managed for these children in terms of proper accommodation and the like.    

16. There is no indication of what the delay in hearing the appeal may be.  An application for expedition has not been made.  I have referred to the evidence of Ms C and Mr D.  With respect to the challenge to the admission of Mr D’s report, it is clear that was a report obtained jointly by the parties, fully aware of Mr D’s qualifications. 

17. The best interests of the children are a significant consideration, although not the paramount consideration, when granting a stay.  These are two very young boys, who need their primary carer to be psychologically well and functional.  The evidence of Ms C, supported by the evidence of the maternal grandparents in terms of their practical and emotional assistance to the mother, makes it clear the mother requires a degree of support. 

18. As was referred to in the interim judgment, the orders provide an end point for her when she will be able to move to Melbourne on an interim basis. Although it is delayed, this should provide her with some relief from the stress of the situation in which she currently finds herself.  The problem is that if that stress is not relieved, the likelihood of a flow-on effect to the boys. 

19. These children need their primary carer to be well, to be functional, and able to meet their needs.  When one thinks about the age of Y, it is obvious that is extremely important.  That needs to be balanced against the need of the boys for a meaningful relationship with their father.  The orders provide for a build-up of time, so that overnight times can commence sooner rather than later.  For all of those reasons, I am not inclined to grant a stay of the orders that were made, and I dismiss the application filed on 17 August 2020.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Boyle.

Associate:

Date: 4 September 2020